United States District Court, D. South Carolina, Florence Division
R. BRYAN HARWELL, District Judge.
Pending before the Court are (1) Phillip Omar Robinson's ("Petitioner's") pro se Motion to Vacate, Set Aside, or Correct Sentence ("Motion to Vacate") pursuant to 28 U.S.C. § 2255 (ECF No. 50); (2) Respondent's Motion for Summary Judgment (ECF No. 59); and (3) Petitioner's pro se Motions for Summary Judgment (ECF Nos. 62 and 70). For the following reasons, the Court grants Respondent's Motion for Summary Judgment, dismisses Petitioner's Motion to Vacate, and denies Petitioner's Motions for Summary Judgment.
On April 26, 2011, a federal grand jury returned a three-count indictment against Petitioner. Count One charged him with knowing, intentional, and unlawful possession with the intent to distribute a quantity of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(c). Count Two charged him with felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) and 924(e). Count Three charged him with using and carrying a firearm during and in relation to, and possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). On September 13, 2011, Petitioner entered a plea of guilty to Count Two of the indictment without a plea agreement.
At a sentencing hearing held on December 8, 2011, Petitioner's Presentence Report (PSR) indicated a base offense level of 24 because he had two South Carolina felony convictions involving a controlled substance offense - a conviction for possession with intent to distribute marijuana and a conviction for possession with intent to distribute cocaine. [PSR, Doc. #44, at 13] The Court sentenced Petitioner to 84 months imprisonment, and this judgment was docketed on December 9, 2011. Petitioner did not file an appeal, and he signed a waiver of appeal at sentencing.
Based on the prison mail room stamp, Petitioner filed the instant Motion to Vacate on November 15, 2012, alleging the following grounds for relief:
Ground One: "Violation of Statute, 21 USCS § 802(44): Defendant's prior criminal drug offenses were utilized as predicate felony convictions to enhance defendant for weapon charges under 922g and 924(a)(2). 21 USCS § 802(44) provides the following definition for a felony drug conviction: "The term felony drug offense means an offense that is punishable by imprisonment for more than one year under any law of the United States or a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marijuana, anabolic steroids, or depressant or stimulant substances." Based upon the definition for a drug offense to be classified as a felony conviction, Defendant must have actually spent over one year imprisonment. Not that he must have been sentenced to over one year, he must have actually spent over one year and a day in prison."
Ground Two: "The two prior drug convictions are not felony drug convictions for Federal, State or foreign country purposes."
Ground Three: "Defendant Robinson was wrongfully classified as a felon in possession of firearm, ammunitions. Violation of amendment II, Bill of Rights."
Ground Four: "Ineffective Assistance of Counsel, Sixth Amendment violation."
[Pet'r's Mot. to Vacate, Doc. # 50, at 4-8]
On December 13, 2012, the government filed a Motion for Summary Judgment and Response [Doc. # 58 and 59], alleging that Petitioner's Motion was without merit. An order filed on December 14, 2012, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), advised Petitioner of the dismissal procedure and the possible consequences if he failed to respond adequately. On January 11, 2013, Petitioner filed a Motion for Summary Judgment. [Doc. # 62.] Defense counsel Michael Meetze filed an affidavit on January 14, 2013. [Doc. # 65] On January 17, 2013, the government filed a supplemental response. [Doc. # 66] A second Roseboro Order was entered on January 18, 2013. Petitioner filed a second pro se Motion for Summary Judgment and Response to the government's motion on January 18, 2013. [Doc. # 70 and 71] Petitioner filed a Reply to the government's supplemental response on February 11, 2013 [Doc. # 73] This matter is ripe for review.
Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). "The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, will not be allowed to do service for an appeal.' (internal citation omitted) For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. (internal citations omitted) Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted a fundamental defect which inherently results in a complete miscarriage of ...